cheeseman blaw8e ch08

Introduction to Criminal Law and Cyber CrimesU.S. criminal law systemPerson charged is presumed innocent until proven guiltyThe burden of proof is on the governmentAccused must be found guilty beyond a reasonable doubtAccused is provided with constitutional safeguards

Copyright 2013 Pearson Education, Inc. Publishing as Prentice Hall.8-2

Copyright 2013 Pearson Education, Inc. Publishing as Prentice Hall.

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Definition of a CrimeCrime: Any act done by an individual in violation of those duties that he or she owes to society and for the breach of which the law provides that the wrongdoer shall make amends to the public


Copyright 2013 Pearson Education, Inc. Publishing as Prentice Hall.*

Definition of a CrimePenal codes and regulatory statutesStatutes are the source of criminal lawState penal codes and federal regulatory statutes define in detail:The activities considered to be crimes within their jurisdictionThe penalties that will be imposed for their commissionFinesImprisonment



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Definition of a CrimeParties to a criminal actionPlaintiff the governmentDefendant the accusedThe government is represented by a prosecutorThe accused is represented by a defense attorney



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Classification of CrimesFeloniesMisdemeanorsViolationsCopyright 2013 Pearson Education, Inc. Publishing as Prentice Hall.8-6


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Definition of a CrimeIntent crimesCriminal act (actus reus)Criminal intent (mens rea)Specific intent crimeGeneral intent crimeMerely thinking about a crime is not a crime, because no action has been taken



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Definition of a CrimeNonintent crimesImposes criminal liability without a finding of intentOften imposed for reckless or grossly negligent conduct that causes injury to another personInvoluntary manslaughter is a nonintent crime



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Criminal ProcedureArrestPolice must obtain arrest warrant based on showing probable causeWarrantless arrests allowed when police arrive during: Commission of crimeA person is fleeing from the scene of crimeA situation where evidence is likely to be destroyed



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Criminal ProcedureIndictment or informationGrand juryDetermines whether there is enough evidence to hold accused for trialSerious crimesIssues an indictment



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Criminal ProcedureMagistrateDetermines whether there is enough evidence Lesser crimesIssues an information



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ArraignmentAccused informed of all chargesAsked to enter a pleaGuiltyNot guiltyNolo contendereDoes not admit guilt, but agrees to penaltyCannot be used as evidence of liability in civil trials



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Plea BargainingAllows accused to plead to lesser crimeSaves money, timeAvoids risk of trialPrevents further overcrowding of jailsVery common



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Criminal TrialVerdict must be unanimousIf any juror doubts the guilt of the accused, the accused cannot be found guiltyIf jurors cannot agree, jury considered to be a hung juryConvicted defendant can appealIf defendant found not guilty, government cannot appeal



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Common CrimesMurderUnlawful killing of person with malice aforethoughtDifferent degrees of murder depending upon level of intentFelony murder rule: death during commission of any felony may be prosecuted as murder Intent to commit murder inferred from intent to commit other crime



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Common CrimesRobberyThe taking of personal property by use of fear or forceIf a weapon is used, it is considered armed or aggravated robberyBurglaryThe taking of personal property from anothers home, office, or commercial or other type of building



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Common CrimesLarcenyWrongful and fraudulent taking of another persons personal propertyIncludes trade secrets, computer programs, other business propertyForce or entry into a structure not requiredMay distinguish between grand and petit larceny, based on value of property taken



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Common CrimesReceiving stolen propertyKnowingly receiving stolen property with the intention of depriving rightful owner of that propertyProperty must be tangible propertyArsonMalicious or willful burning of anothers dwellingNow extended to all structuresIncludes willful burning by structures owner



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Business and White-Collar Crimes ForgeryWritten documents fraudulently made or alteredChange affects legal liability of another personSigning another persons signature without intent to defraud is not forgeryEmbezzlementFraudulent conversion of property by person to whom property is entrusted



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Business and White-Collar Crimes BriberyOfferor commits crime when bribe is offeredOfferee commits crime when bribe is acceptedBribe can be of anything of valueExtortionThreat to expose something about another person unless that other person gives money or propertyAlso known as blackmail



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Business and White-Collar Crimes Criminal fraudObtaining title to property through deception or trickeryIncludes:Mail fraudWire fraudAlso called false pretenses or deceit



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Business and White-Collar Crimes Under Money Laundering Control Act, a crime to:Knowingly engage in monetary transaction through financial institution involving property worth more than $10,000Knowingly engage in a financial transaction involving proceeds of an illegal activityIf convicted, fines of up to $500,000 or twice the value of the property and up to 20 years in prison



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Business and White-Collar Crimes Racketeer Influenced and Corrupt Organizations Act (RICO)Criminal RICO - A federal crime to acquire or maintain an interest in, use income from, or conduct or participate in the affairs of an enterprise through a pattern of racketeering activityCivil RICO - Persons injured by a RICO violation can bring a private civil RICO action against the violator to recover for injury to business or property



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Business and White-Collar Crimes Criminal conspiracyTwo or more persons enter into an agreement to commit a crimeRequires an overt actCrime does not have to be committed



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Cyber CrimesCounterfeit Access Device and Computer Fraud and Abuse Act (CFAA)Federal crime to use a computer knowingly to obtain:Restricted federal government informationFinancial records of financial institutionsConsumer reports of consumer reporting agencies



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Protection Against Unreasonable Search and SeizureFourth Amendment protects persons and corporations from overzealous investigative activities by the governmentReasonable search and seizure by the government is lawfulSearch warrants based on a probable cause are necessary in most casesGovernment may not search businesses without a search warrant



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Protection Against UnreasonableSearch and SeizureExclusionary ruleEvidence obtained from an unreasonable search and seizure generally may not be used at trialGood faith exceptionEvidence may be introduced if law enforcement reasonably believed that they were acting pursuant to valid search warrant



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Case 8.1: U.S. Supreme Court Exigent CircumstancesCaseKentucky v. King131 S.Ct. 1849, 179 L.Ed2d 865, Web 2011 U.S. Lexis 3541 (2011)Supreme Court of the United StatesIssueDo exigent circumstances exist that support the polices warrantless search of the apartment?



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Case 8.2: U.S. Supreme Court Search and SeizureCaseArizona v. Gant129 S.Ct. 1710, 173 L.Ed.2d 485, Web 2009 U.S. Lexis 3120 (2009)Supreme Court of the United StatesIssueIs the warrantless search of Gants automobile justified as a search incident to an arrest?



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Privilege Against Self-IncriminationFifth Amendment states that no person shall be compelled in any criminal case to be a witness against himself or herselfProtects natural persons onlyAttorney-client privilegesClient can tell his or her attorney anything about the case without fear that the attorney will be called as a witness against the client



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Privilege Against Self-IncriminationOther privilegesPsychiatrist/psychologist-patient privilegePriest/minister/rabbi/imam-penitent privilegeSpousal privilegesParent-child privilegeNo accountant-client privilege under federal law



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Privilege Against Self-IncriminationImmunity from prosecutionGovernment may offer person immunity from prosecution in exchange for testimonyPerson loses right to assert Fifth Amendment privilegeProtection against double jeopardyFifth Amendment provides that persons cannot be tried twice for same crime



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Other Constitutional ProtectionsRight to a public trialSixth Amendment guarantees the right:

To be tried by an impartial jury of the state or district in which the accused crime was committedTo confront (cross-examine) the witnesses against the accusedTo have the assistance of a lawyerTo have a speedy trialCopyright 2013 Pearson Education, Inc. Publishing as Prentice Hall.8-33


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Protection Against Cruel and Unusual PunishmentEighth Amendment protects criminal defendants from torture or other abusive punishmentDoes not prohibit capital punishment



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cheeseman blaw8e ch08

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